Watch out! Fake news is coming to get you! Lock your doors and iPhones, guard your dogs and children, and hold on to your comb overs! But is fake news so bad, and isn't some, all, or most of it legally protected parody?
According to the New York Times, "fake news" is "pure fiction masquerading as truth." Many in your Valley have recently expressed concern about how such news not only affected the recent election, but also how to combat it via algorithm and other fancy methods. Mark Zuckerberg is but one in the Valley who has expressed concern.
The problem is that much parody and satire comes in the form of "pure fiction masquerading as truth." In fact, many would argue that the best satire is so good, so biting, because it could very well be true. During the election, satirical news and interviews prliferated like "Clinton's 30,000,000.77 Deleted E-mails!" And yet this particular imaginary August interview was close to the truth in imagining Mrs. Clinton using 10 cell phones -- real number 12, as later determined by the FBI in September -- to send e-mails!
Some have argued, however, that many in the newer generation don't get satire, and have trouble telling the difference between fake news and satire. A recent Wall Street Journal article makes this point. And yet the argument begs the question of why such students don't have the critical thinking skills to tell the difference between humor and news. Even if the article is factually accurate, the question also becomes whether Facebook and other sites need to cater to such students, or keep in mind that many adults enjoy absurd "fiction masquerading as truth" because it makes fun of how surreal reality can be. Important to keep in mind Einstein’s quote, “imagination is more important than knowledge,” cause sometimes our intuitive imaginations can know things about events or people our rational minds cannot fathom.
That's why parody is one of the explicitly fair use categories under the Copyright Act. While a finding of such use isn't a per se finding of fair use, it certainly pushes the scale in the defendant's favor. The same is true of the First Amendment. Parody, satire, and humor are tools that dark souls use to make fun of societal extremes so as to avoid real, physical, conflict that inevitably results without the pressure release of humor.
So great satire can be fake news!
This means don't throw the satirical baby out with the fake news bath water. Even assuming that such news is undesirable, an objective adult person standard, as opposed to a clueless teenager standard, should be used in determining if the fake news in question more closely resembles false advertising than parody. Even after reasonable reliance is shown, damage would need to be proved from the alleged deception. But mere offense at the humor, or political position taken in the false ad, wouldn’t suffice.
In so doing, we protect the healthy satire that keeps us laughing, thinking on our feet, and away from destructive binary – yes/no, on/off, bourgeois/proletariat – robot thinking.